Alito memo defended warrantless wiretaps

High court nominee argued for attorney general's immunity

Donna Cassata, The Associated Press

Published 10:00 pm, Friday, December 23, 2005

WASHINGTON -- Supreme Court nominee Samuel Alito defended the right of government officials to order domestic wiretaps for national security when he worked at the Reagan Justice Department, an echo of President Bush's rationale for spying on U.S. residents in the war on terror.

Then an assistant to the solicitor general, Alito wrote a 1984 memo that provided insights on his views of government powers and legal recourse -- seen now through the prism of Bush's actions -- as well as clues to the judge's understanding of how the Supreme Court operates.

The National Archives released the memo and scores of other documents related to Alito on Friday. The Associated Press had requested the material under the Freedom of Information Act. The memo comes as Bush is under fire for secretly ordering domestic spying of suspected terrorists without a warrant.

Senate Judiciary Committee Chairman Arlen Specter, R-Pa., said Monday that he would ask Alito about the president's authority at confirmation hearings beginning Jan. 9. The memo's release Friday prompted committee Democrats to signal that they will press the conservative jurist about executive powers.

The memo dealt with whether government officials should have blanket protection from lawsuits when authorizing wiretaps. "I do not question that the attorney general should have this immunity," Alito wrote. "But for tactical reasons, I would not raise the issue here."

Despite Alito's warning that the government would lose, the Reagan administration took the fight to the Supreme Court in the case of whether Nixon's attorney general, John Mitchell, could be sued for authorizing a warrantless domestic wiretap to gather information about a suspected terrorist plot.

The FBI had received information about a conspiracy to destroy utility tunnels in Washington and to kidnap Henry Kissinger, then national security adviser, to protest the Vietnam War.

In its court brief, the government argued for absolute immunity for the attorney general on matters of national security.

"The attorney general's vital responsibilities in connection with intelligence gathering and prevention in the field of national security are at least deserving of absolute immunity as routine prosecutorial actions taken either by the attorney general or by subordinate officials.

"When the attorney general is called upon to take action to protect the security of the nation, he should think only of the national good and not about his pocketbook," the brief said.

Signing the document was Rex Lee, then the solicitor general, officials from the Justice Department and Alito.

Alito's analysis about the court and the need for an incremental legal strategy proved prescient. The case ultimately led to a 1985 ruling by the Supreme Court that the attorney general and other high level executive officials could be sued for violating people's rights, in the name of national security, with such actions as domestic wiretaps.

"The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity," the court held.

However, the court said Mitchell was protected from suit, because when he authorized the wiretap he did not realize his actions violated the Fourth Amendment.

The decision was consistent with the Supreme Court's unanimous ruling in 1972 that it was unconstitutional for the government to conduct wiretaps without court approval despite the Nixon administration's argument that domestic anti-war groups and other radicals were a threat to national security.

Alito had advised his bosses to appeal the case on narrow procedural grounds but not seek blanket immunity.

"There are also strong reasons to believe that our chances of success will be greater in future cases," he wrote. He noted that then-Justice William Rehnquist would be a key vote and would recuse himself from the Nixon-era case.

The documents were among 45 released by the National Archives as the holiday weekend approached. A total of 744 pages were made public.

The White House and Sen. John Cornyn, R-Texas, a member of the Judiciary Committee, dismissed any link between the 1984 memo to Bush's authorization of electronic surveillance without a warrant to thwart terrorism.

"Any connection between Judge Alito's 1984 memorandum and the current discussion of terrorist surveillance by the NSA is a real stretch," Cornyn said in a statement.

But Democrats seized on the memo and vowed to press Alito on the matter at his confirmation hearings.

"At a time when the nation is faced with revelations that the administration has been wiretapping American citizens, we find that we have a nominee who believes that officials who order warrantless wiretaps of Americans should be immune from legal accountability," said Sen. Edward Kennedy, D-Mass.

Bush picked Alito to take the Supreme Court seat held by Associate Justice Sandra Day O'Connor, who is retiring.